NCAA Argues in Court Over Paterno Suit
October 29, 2013 2:27 PM
by Adam Lidgett
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Attorneys for the NCAA appeared in Centre County Court Tuesday trying to torpedo the lawsuit filed by the Paterno family.

Also on hand today, were attorneys for the Paternos, as the two sides debated the NCAA's preliminary objections to the lawsuit which was filed in May.

The Paterno family is joined in the lawsuit by several members of the Penn State Board of Trustees, former Nittany Lion football players, and university faculty members. Their suit asks to have the NCAA sanctions against the university reversed. The two sides also tangled over the consent decree signed by university president Rodney Erickson. Under the consent decree the university agreed to accept sanctions handed down by the NCAA.

Those sanctions included a reduction in football scholarships, a ban on bowl appearances, and the vacating of 111 wins under former coach Joe Paterno.

According to the NCAA, when Penn State signed the consent decree agreeing to sanctions, the university was protecting itself from further penalties from the NCAA. The NCAA says Penn State could face additional sanctions if the consent decree were voided.

"If the consent decree were voided there would likely be an investigation [by the NCAA]," Johnson says.

Johnson says that Penn State, by agreeing to the period of four years for the scholarship reductions and post-season play, the university avoided the possibility of longer term sanctions. Johnson says the consent decree was an attempt by Penn State to move forward from the Jerry Sandusky sex abuse scandal.

"It's impossible to think this [lawsuit] is about anything else but undoing whatever Penn State has done," Johnson says.

Joseph Loveland, attorney for the Paterno family, says the plaintiff's do not wish to start over with the Sandusky scandal. Loveland says the focal point of the suit is whether the NCAA had jurisdiction over Penn State.

The plaintiffs argue that the NCAA did not have the right to impose the sanctions on Penn State because the sanctions derived from a criminal matter, something the NCAA has never been involved in. The plaintiffs also claim the NCAA breached its contract with Penn State because it did not conduct it's own investigation into the Sandusky scandal, relying instead on Louis Freeh's report as a basis for the sanctions.

"The notion that there would be another investigation is hollow if there is no jurisdiction to begin with," Loveland says.

Everett Johsnon, attorney for the NCAA, says that the consent decree is actually beneficial in some ways for Penn State. Johnson says that because Penn State President Rodney Erickson signed the consent decree allowing for bowl bans and scholarship reductions, it took off the table the possibility of a death penalty for the football program.

Specific claims were also discussed Tuesday, including those of former Penn State coaches Jay Paterno and Bill Kenney who say they were at an economic disadvantage when it became harder to find a job coaching after the sanctions were handed out.

Johnson says neither of the former coaches were employed when the Freeh Report was released and the sanctions were issued in July 2012, and that neither coach was specifically referenced in the Freeh Report.

Paul Kelly, another attorney for the Paterno's, says the former coaches did suffer damages to their careers as a result of the Sandusky scandal and the Freeh Report. Kelly says the jobs Paterno and Kenney held were part of the very unique field of coaching Division 1 college football.

"If you are the subject of ... a consent decree, you are radioactive in the coaching world and most other programs aren't going to want to touch you." Kelly says.

The attorneys also argued over the claim of commercial disparagement from the estate of Joe Paterno. The estate of the former head coach claims that Joe Paterno's reputation was disparaged as a result of the Sandusky scandal and the NCAA sanctions that came from it.

Commercial disparagement requires that there is a loss of commerce.

Johnson says that the Paterno estate can't sue for commercial disparagement because Joe Paterno's reputation is not commercial.

"They tried to cram what is any reasonable construction a defamation claim into the much narrower construction of disparagement," Johnson says.

Ashley Parrish, another attorney for the Paterno family, says that Paterno's reputation does have a commercial aspect and has been used many times to market products. Some of these instances include marketing campaigns by AT&T in 1986, Burger King in 1995 and Nike from 1979 until 2011.

"If anybodies reputation has been commercialized, it has been coach Paterno's," Parrish says.

The claim that the NCAA breached its contract with Penn State was also discussed, with attorneys for the NCAA arguing that the Paterno estate cannot sue for breach of contract because Joe Paterno isn't an involved individual in the case.

Johnson says being an involved individual in the case does not simply mean you are simply mentioned – to be an involved, according to NCAA bylaws, means you are someone who is specifically sanctioned.

Joe Paterno is mentioned in the Freeh report, and the wins that were vacated were under Paterno's leadership. However, the NCAA argues that those aren't specifically Joe Paterno's win, but rather the team's.

Loveland says that you are an involved individual if you are involved in the conduct the NCAA is referring to, not only if you are the one being sanctioned.

"I find it fascinating that when [the NCAA] believes in some aspects of their rules and regulations that may help them, they clothe themselves in them," Loveland says.

Judge John Leete made no ruling Tuesday, and did not give any indication as to when he would.

Sandusky, the former Penn State defensive coordinator, was convicted in 2012 on 45 counts of child sex abuse. He is serving a sentence of 30 to 60 years.

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